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Thursday, 24 October 1974
Page: 1974

Senator MURPHY (New South WalesAttorneyGeneral) - I thank the Deputy Leader of the Opposition (Senator Greenwood) for indicating the support of the Opposition for the measure. The principal question he raised is one of the constitutional bases of the legislation. This was considered carefully during his period as Attorney-General of Australia. An opinion was given by the then Solicitor-General, Mr Ellicott, on the question. I think that the opinion has probably been circulated but I will indicate some portions of it to show the approach which was taken. He said:

My opinion is sought on the question whether the Commonwealth Parliament could validly enact a law to implement throughout Australia the provisions of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, in the event that Australia acceded to the Convention. In my opinion, the Commonwealth Parliament could enact such a law in the exercise of its power under section 51 (xxix ) of the Constitution to make laws with respect to external affairs. Additional support for such a law, insofar as it related to the recognition and enforcement of foreign arbitral awards made in connection with trade and commerce between Australia and other countries would be available under section 5 1 placitum (i)- the power to make laws with respect inter alia to trade and commerce with other countries.

In his rather lengthy opinion he turned to the question of whether it is within the legislative competence of the Commonwealth Parliament to implement this convention, and said:

The areas of inquiry are, I think, limited to 2 powersnamely, section 51 (i) and (xxix)- the trade and commerce and the external affairs powers. Since the kinds of arbitral awards to which the Convention would apply if Australia were to become a party would not be limited to awards arising out of transactions in the course of overseas trade and commerce, it is clear that section 51 (i) would not provide the necessary power and that it is necessary to look to the external affairs power.

He then came to the conclusion that this could be done. In regard to the particular Convention the Solicitor-General expressed the view, if I may put it in a simple fashion, that it was doubtful that it could be done any other way. He said:

If the Commonwealth, notwithstanding its own legislative competence, were able to procure legislation in a satisfactory form from each of the States it may well be that this would bc accepted by other contracting States as a sufficient discharge of its obligation. However, if the obligation of a federal government under the Convention is properly construed, I think other contracting States would be justified in requiring legislation by the federal authority instead of by State authorities where legislative competence exists in the federal authority.

The nature of the clause in the Convention was such as to require the Federal authority to legislate in court, if I may put it in simple terms. The conclusion reached is that it can and that, if it can, it is not a compliance with the Convention to allow it to be done other than by the central legislative authority.

So this is one case where, if that approach is correct, the Deputy Leader of the Opposition may agree that it is desirable in any event that the Australian Parliament exercise its powers, because it seems that to do otherwise may not be fulfilling its international obligations as it should. So that is the basis upon which we are proceeding- not only that there is legislative power to do it but also that it may not have been a fulfilment of the international obligations if we were not to do it.

May I recall the other practical consideration when we look at the matter. I do not have the details with me now, but some of the States went ahead to do something about this. Some introduced legislation inconsistent with it and some just did nothing at all. So if we were going to have satisfactory legislation it seems that this

Parliament has to do it anyway, and that is the reason for it. I commend the Bill to the Senate.

Question resolved in the affirmative.

Bill read a second time.

In Committee

The Bill.

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